The Once and Future Countervailing Power of Labor

Abstract

This essay looks to the history of the labor movement to engage with Kate Andrias’s and Benjamin I. Sachs’s argument that labor law provides a model of how law can support organizing. While embracing the solidarity of labor scholarship with the vibrant scholarly conversation about law and progressive social movements, I sound four cautionary notes drawn from past repression of labor and civil-rights activism. Labor’s experience is that law tends not only to thwart and suppress but also to channel movement activity in ways that weaken threats to the hegemony of the wealthy under capitalism. Sketching three specific ideas about how law can enable the exercise of countervailing power without also channeling activism away from radical challenges to elite power, I note how law has made it both essential and difficult for labor and racial justice activists to organize together against inequality. Although today’s inclusive activism gives hope for completing unfinished work of the New Deal, Civil Rights, and Great Society eras, we should be clear-eyed about the role law played in leaving that work undone and the difficulties of using law to build sustainable class-based social movements

Keywords: labor, political economy